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School’s Affirmative Action Plan Stricken

School’s Affirmative Action Plan Stricken

by Patricia A. Maloney

Affirmative action programs are a hot topic in the political arena. They also are coming under great scrutiny in the judicial system. A case decided in August, 1996 by the Third Circuit Court of Appeals, which has jurisdiction over federal courts in part of the eastern United States, highlights this increased scrutiny.

In Taxman v. Board of Education of the Township of Piscataway, a white teacher sued the school district claiming she was illegally discriminated against based upon her race when she was laid off from employment. The school district needed to reduce by one the number of teachers in its business department. The two least senior teachers in the department, one white and one black, had the same seniority date and had equal teaching qualifications.

Historically, the school district had broken seniority ties by randomly drawing a number out of a container or by flipping a coin. In this instance, however, the school district felt its affirmative action policy required it to retain the black teacher. Unlike a random tie breaking process, the affirmative action policy injected race as the determining factor for selecting which employee would be laid off. The white teacher sued claiming that using race as the determining factor violated her rights under Title VII of the Civil Rights Act of 1964.

The school district wanted to retain the black teacher in order to maintain diversity in its business department. The school district did not reach its decision in order to remedy prior discrimination on its part or because black people were under represented on its teaching staff. In the court’s words, the school district’s affirmative action plan was a “non-remedial” plan.

The Third Circuit Court of Appeals agreed with the white teacher and found her layoff to be unlawful. The court first focused on the nature of the school district’s affirmative action plan. Because that plan’s purpose was not remedial, it was inconsistent with the purposes of Title VII. Instead, the plan’s purpose and the school district’s decision were designed to foster diversity. The court, however, found that “there is no congressional recognition of diversity as a Title VII objective requiring accommodation.” The court held that the school district needed to establish that its affirmative action plan was adopted in order to “remedy past discrimination or as the result of a manifest imbalance in the employment of minorities.”

The court went on to examine the details of the school district’s affirmative action plan and found it to be lacking in a number of respects. First, the court criticized the plan because it did not define “racial diversity.” Second, the plan contained no goals or guidelines for determining when the sought-after racial diversity had been achieved. Third, the plan was of unlimited duration, as opposed to ending upon the achievement of stated goals. Fourth, the court concluded:
[T]he harm imposed upon a nonminority employee by the loss of his or her job is so substantial and the cost so severe that the goal of racial diversity, even if legitimate under Title VII, may not be pursued in this particular fashion. This is especially true where, as here, the nonminority employee is tenured.

The Third Circuit Court of Appeals’ decision is not binding on Wisconsin’s school districts. This case is important, however, because it is the first to answer these questions under Title VII and will be looked at by other courts deciding similar issues.

It is not uncommon for a school district to believe it can inject minority status into an employment decision so long as it is doing so in favor of the minority applicant or employee. It is not illegal to do so in all circumstances, but the circumstances in which it can be done are very limited. As illustrated by the Taxman decision, using an applicant’s or employee’s minority status (or non-minority status) in an employment decision can have serious legal consequences and must be done with extreme care.

About Patricia Maloney

Patricia Maloney is a shareholder of Ratwik, Roszak & Maloney, P.A. Ms. Maloney received B.A. degree, cum laude, from Macalaster College and her J.D. degree from William Mitchell College of Law, cum laude. Prior to forming Ratwik, Roszak & Maloney, P.A, Ms. Maloney was an associate and shareholder with the firm of Peterson & Popovich. In 1987 she became a founding shareholder of Ratwik, Roszak & Maloney, P.A. Her primary areas of practice and experience include general school law, general municipal law, labor and employment law (including employment litigation and arbitration), investigation and defense of harassment and discrimination claims, negotiation and administration of collective bargaining agreements, employee discipline and discharge and student rights.